REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL SUIT NO. E005 OF 2023
MULIRO ELIJAH WAFULA (suing on OWN BEHALF and as the father to MESHACK MULIRO MILIMO – a minor) . 1 ST PLAINTIFF
-VERSUS-
KUSHU AMBAISI …….…………………………..…. 1 ST DEFENDANT
BUNGOMA COUNTY REFERRAL HOSPITAL …. 2 ND DEFENDANT
COUNTY EXECUTIVE FOR HEALTH-COUNTY GOVERNMENT OF BUNGOMA ……………………………………….. 3 RD DEFENDANT
COUNTY GOVERNMENT OF BUNGOMA ……… 4 TH DEFENDANT
JUDGMENT
1. The Plaintiff instituted the present suit vide a Plaint dated 23 rd November 2023 against the Defendants jointly and severally, seeking the following reliefs: -
(1) General Damages for injuries suffered and sustained by the minor Plaintiff due to surgical negligence at the time of circumcision by the 1 st Defendant and thereafter.
(2) Punitive and Aggravated Damages due to the demonstrated conduct of recklessness and high-handedness of the Defendants during the circumcision and thereafter.
(3) A Declaration that the Plaintiff’s constitutional rights under Article 43 of the Constitution were violated by the Defendants and liable to pay exemplary and General Damages.
(4) General Damages for inconvenience, psychological anguish and emotional stress undergone by the Plaintiff while taking care of the minor Plaintiff and seeking financial support.
(5) Special Damages of Kshs. 4,000/= and future treatment costs to be ascertained at the hearing hereof.
(6) Costs of this suit and interest at court rates.
(7) Any other relief that this Honourable Court may deem fit to so grant.
2. The Plaintiff’s case is that on 28th November 2022, he took his healthy son, Meshack Muliro Milimo, to the 2nd Defendant herein for a surgical operation, surrendering him into the 2nd Defendant’s care, whom he believed to have the relevant facilities, expertise, knowledge and experience to undertake the circumcision. He averred that the minor was duly admitted and circumcised by the 1st Defendant at the 2nd Defendant's health facilities, where dressing and subsequent follow-ups were carried out, and that he was later advised to dress the patient at home after the patient’s condition was deemed stable.
3. The Plaintiff avers that the patient/minor's condition deteriorated when, during a home dressing, he observed that there was no healing and, instead, suspected skin decomposition. He states that his request for follow-up with the 2nd Defendant for a further check-up and/or a medical report was declined, forcing him to take the patient/minor to Bungoma West Hospital on 13th December 2022, where the patient/minor was immediately admitted and discharged on 26th December 2022 after the surgery was successfully redone.
4. It is the Plaintiff’s further case that after the surgery, the prognosis indicated negligence by the doctor/clinical officer involved at the time of circumcision, through surgical error, mismanagement, and failure to provide the patient with a medical report despite several requests by the Plaintiff. He avers that the patient/minor's painful and distressing experience was widely publicised on national television, especially on Citizen TV, which drew inter alia more attention to the crisis of institutional negligence in healthcare in Kenya, including inadequate training and lack of supervision, and which widely influenced unethical practices that caused suffering among innocent Kenyans seeking medical attention, including the minor.
5. The Plaintiff contends that despite the above publications and demand, the Defendants have never bothered to reach out to them to apologise or compensate them. Further, due to their negligence, the patient, while undergoing routine treatment, was referred for further specialised medical attention at Oasis Health Care Group, Kakamega County. After several medical check-ups in January 2023, the patient was recommended for further corrective surgery and skin grafting in Pennsylvania, USA. However, due to a lack of funds for the corrective surgery, the patient consulted Kenyatta National Referral Hospital (KNH), where it was confirmed that the procedure could be performed.
6. It is his case that on 10th February 2023, the patient was admitted to the Kenyatta National Hospital Prime Care Centre under Dr. Alex Okello (Reconstructive Surgery) after being diagnosed with Post-Traumatic Penile Wounds. He underwent major debridement and partial-thickness skin grafting on 11th February 2023. The reconstruction was successful, and the patient was discharged on 13th February 2023.
7. It is also averred that, as a result of the above, the Plaintiff suffered psychological anguish, mental and financial torture, and, being a TSC teacher, had to seek a leave of absence from school to care for the minor during his admission to both hospitals and at home, while also sourcing funds for the minor's treatment and expenses. The minor also underwent severe mental and emotional stress and physical pain from the date of circumcision and the post-circumcision trauma, which has affected his self-esteem and performance in class. The particulars of negligence were pleaded at paragraph 24 of the Plaint.
8. The Defendants entered an appearance and filed a joint Statement of Defence dated 17th April 2024, in which they denied the contents of the Plaint and put the Plaintiff to strict proof. They averred that the 1st Defendant is a fully trained, certified and experienced practitioner in his area of expertise and has successfully performed numerous surgical procedures whilst in the employ of the 4th Defendant. They denied any mismanagement, high-handedness or recklessness by the 1st Defendant whilst attending to the minor patient, and contend in their defence that the Plaintiff is not entitled to the reliefs sought and that they never infringed any of the Plaintiff’s or the minor’s constitutional rights.
9. The Plaintiff filed a Reply to the Defence dated 31st May 2024, in which he reiterated the contents of the Plaint. Subsequently, the matter was set down for hearing.
THE PLAINTIFF’S CASE
10. The Plaintiff called three (3) witnesses. PW1, Doctor Mulianga Ekesa, a consultant surgeon in Bungoma town, testified that he examined one Meshack Muliro Milimo (the minor in this case) on 17th November 2023. He further testified that the minor was a 12-year-old pupil whose history included undergoing male circumcision under local anesthesia on 28th November 2022 at Bungoma County Referral Hospital. He also stated that there was minimal post-operative pain and swelling, but after seven (7) days the parent noticed blisters on the skin of the penile shaft. After three (3) weeks from the date of circumcision, the father noticed a circumferential demarcation on the penile skin at the base of the penis, accompanied by pain. He also noticed that the area, i.e., the circumcision line and the base of the penis, had become black and hard as hide. The minor was then treated for these observations at Bungoma West Hospital in Bungoma town, where the hardened part was removed and a skin graft was performed at Kenyatta National Hospital (KNH).
11. PW1 testified that at the time of this examination, the minor’s father said the boy had experienced severe pain and that a substantial sum of money had been spent. On physical examination, PW1 noted a scar on the thigh measuring 10 by 7 centimeters, which was the donor site from which skin was taken to graft the penile wound. On general examination, the minor had grafted skin on the penile shaft between the circumcised shaft and the base of the shaft. He formed the opinion and prognosis that the minor had suffered gangrene of the penile shaft, i.e., death of a part of the body with the rest remaining alive. He also suffered pain and psychological trauma. The pain was due to dry gangrene on the penis, as opposed to wet gangrene. He explained that dry gangrene is usually due to blockage of blood flow to the vessels beyond the demarcated area, while wet gangrene is usually due to infection.
12. It was PW1’s further testimony that the occlusion was caused either physiologically or mechanically. The physiological aspect could have been due to the use of a local anesthetic agent containing adrenaline, which constricts the blood vessels so that no blood reaches the distal part. On the other hand, he testified that if it is mechanical, it entails tying a rubber band or something similar to prevent blood from flowing to the part being operated on. In this scenario, if the tourniquet is left for more than 2 hours, the area will become gangrenous. From the history he was given, he concluded that the gangrene was caused by the physiological effect, as he was neither informed nor had it been indicated that a tourniquet had been used. He stated that if the tourniquet was used, it is possible that the boy remained with it until the 3rd day, when they went back for review. It was his evidence that the minor had nonetheless made a fairly good recovery from the gangrene and skin graft. PW1 produced the Medical report dated 17th November 2023 (P.Exh18).
13. PW1 further testified that he charged the patient Kshs. 4000/= for consultation and issued a receipt, which he produced in Court (P.Exh19). He stated that he had gained experience in surgery from 1988 and that it was not uncommon to encounter complications of circumcision in a hospital setting. From the history, his view was that the negligence was due to the use of local anesthesia and minimal hygiene. He stated that the wound is usually dressed and that the worst scenario is an infection at the incision site, not the gangrene he got. He stated that he had worked and trained in a referral hospital and that he left public service from Bungoma Referral Hospital. He explained that a young clinician is to work under the supervision of a consultant surgeon and a much more senior medical officer in each particular case.
14. On cross-examination, PW1 testified that he qualified as a specialist surgeon in 1994 after training in Australia at Landas House and in Israel at Galilee College. He explained that local anaesthesia numbs a specific area of the body, unlike a general anaesthetic, which renders a patient unconscious and prevents pain throughout the body. He added that the choice of local anaesthesia depends on the procedure to be performed and a number of other factors, e.g. the patient’s age or fear. In the present case, the clinician was not wrong to use local anaesthesia, especially if it did not contain adrenaline. If the drug contained adrenaline, that would constitute negligence arising from professional misconduct. If a tourniquet was used and not removed, that would also be negligence. He said that the patient’s father gave him a history in the boy’s presence, with the minor chipping in, but he could not recall what each said.
15. He stated that he and the father conducted a physical examination of the boy and also provided his previous medical examination reports, along with some photographs. He denied referring the Court to other medical evidence when he tendered his evidence-in-chief, and stated that the gangrene developed after 7 days, when he noticed blisters on the penile shaft, at which point it had manifested. He stated that the hard skin was noticed 3 weeks later, and that, according to the history, they had sought medical care during those three (3) weeks.
16. PW1 further testified that the minor was taken to Bungoma West Hospital and that gangrene had set in when they noticed the blisters. He confirmed that the gangrene was treated because it is a treatable complication, and that antibiotics were not used because they are used to treat a secondary infection. He stated that by the time the blisters were setting in, there was nothing they could have done, as blood in that area had already accumulated. He further stated that the treatment could have been to reconstruct the blood vessels between the gangrenous portion and the normal skin below the gangrenous portion, which cannot be done here in Kenya due to a lack of technology. So the treatment in this case was basically just dressing.
17. PW1 also testified that the minor had made a fairly good physical recovery, but he felt strongly that the pain was psychological, based on the information he was given at the time of examination. He also concluded from the history that the local anaesthetic administered may have contained adrenaline, but he could not confirm this unless he was the one who administered the drug. He stated that even if a mistake was made, it must be disclosed, and that he was aware there were two boys presented for circumcision. He stated that he was merely presenting a medical-legal report and that he did not see the other boy. He said that after the university has released a doctor, they practise under a qualified senior surgeon before being recognised as a specialist in that field, and that in this case he did not know the qualifications of the clinical officer, but stated that they are trained below doctors and could take charge since circumcision is a minor surgery.
18. PW2, Muliro Elijah Wafula, the father of Meshack Muliro Milimo and the plaintiff herein, testified that he was a teacher and wished to rely on his statement dated 23rd November 2023, together with the bundle of documents filed. He testified that he opted to take his son to Bungoma Referral Hospital because it had officers who handle life, and he had confidence that they would give him excellent service. He stated that the excellent service was never given because after his son was discharged and taken home for recovery, he changed his walking style due to the pain and developed a smell.
19. His evidence was that he had to seek a 2nd opinion from another facility and that he went to the hospital but was never assisted. He stated that there were 2 boys, and the other was healing well. He said that he took the boys to Bungoma West hospital, where the person attending to them told him, after looking at the organ, that it was dead, while another doctor was called and told him it was gangrenous. PW1 produced the following documents as exhibits: -
(a) Outpatient Card, Bungoma County Referral Hospital – (P.Exh 1)
(b) Photographs after circumcision (P.Exh 4)
(c) Royal Vision Academy Letter (P.Exh 5)
(d) Filtered M-Pesa Statement (P.Exh 13)
(e) Plaintiff’s National Identity Card and Appointment Card/Letter (P.Exh 14)
(f) The Minor’s Birth Certificate (P.Exh. 15)
(g) Complaint Letter to the Kenya Medical Practitioners and Dentists Council (P.Exh 16).
20. In cross-examination, he stated that he took two boys, Ancement Mukasa and Meshack Muliro, for circumcision on 28th November 2022, and that the procedure was performed on each boy by a different surgeon, though he did not enter the operating room. He confirmed that the two were discharged the same day and that each was in fair physical condition, with no pain, bleeding or swelling. He stated that the two boys were staying together in one house and one room, and that his brother was dressing them and taking care of them, but that his brother was not a witness in this case. He confirmed that he did not mention his brother in the statement.
21. PW2 stated that they went back for a check-up a few days later on 30 November 2022, and the doctor told them they were okay and that they would continue with aftercare at home. He stated that, at the time, there appeared to be no complications, as the boys had not complained of pain, and, in fact, the other boy was walking normally after 2 days.
22. It was his evidence that when they looked at the victim’s wound, it looked terrible, but they proceeded with the normal dressing. Since it was drying, they thought he was recovering. However, PW2 said that he noticed the minor’s walking style was funny, although the minor had not complained of pain. PW2 testified that the minor told him that perhaps the bandage was tightly tied, but PW2 did not seek advice from a physician even after noting this change in walking style.
23. PW2 continued to testify on cross-examination that he wasn’t given the physician’s number to consult about the matter after the surgery, and that he could not confirm whether his brother was entirely in charge of the boys. He further said that his brother called him on the 13th and told him that the boy was not behaving normally, so he went and checked immediately and sought a medical opinion on the same date. He confirmed that he noticed a change in the boy’s walking style from 2nd December 2022 and said that he went to seek a second opinion from Bungoma West Hospital in Kanduyi.
24. PW2 testified that at Bungoma West Hospital, he was told the wound was gangrenous, so his son was admitted. The hospital called Doctor Olunga from Kakamega, who examined the boy and immediately admitted him for corrective surgery. He confirmed to the Court that he was informed of the risks and had to sign a consent form for the surgery. He told the Court that he had also signed a consent form at Bungoma Referral Hospital and that they successfully underwent the second corrective procedure, during which the dead skin and the inner parts that were rotting were removed. He stated that the minor stayed at the hospital for over 2 weeks. When he was discharged, he had improved, but they were told he would not form new skin.
25. PW2 stated that he was the one caring for the boy while continuing to work as a teacher. He denied that his salary had been stopped and stated that the insurance covered the procedure at K.N.H. He further stated that he had incurred significant expenses, as some payments were made in cash. He also told the Court that his brother is a community health practitioner, which is why he was with the boys, as that is his training.
26. On re-examination, PW2 stated that the County Staff, who are his friends, gave him the number of the doctor in charge of surgeons. He inquired through the demand letter about what had happened, and the doctor said he would provide a report but did not. PW2 stated that the doctor said the boy could have reacted to the medicine he was given, so PW2 decided to take him to Bungoma West. He stated that he would call and would be told that the wound was drying. It was his evidence that the boy missed classes in January, that he kept checking on him, and that he was traumatized when he was told his penis was dead. He reaffirmed that it was the doctor who was negligent and that is why he sued the County Government and the Referral Hospital. He further stated that the incident was reported in the news through the media, but still no one from the County Hospital came to apologise to them.
27. PW3, Doctor Kisika Mwambu, testified that he is a medical officer registered under Registration No. A6992 with the Kenya Medical Practitioners and Dentist Council and that he has been at Bungoma West Hospital for the past 7 years. He stated that on 13th December 2022, he received a patient, Meshack Muliro, who had been circumcised at Bungoma County Referral Hospital and had developed complications in the circumcision wound, with dead tissue on the ground, also known as gangrene.
28. He testified that the gangrene was present on part of the penile shaft, and that they therefore diagnosed the gangrene in the circumcision wound as requiring surgical intervention. He stated that this was a rare occurrence, as it was not normal for a circumcision wound to develop necrotic tissue. He further stated that it could have been caused by poor management of the wound after circumcision or by poor technique during the circumcision. In this case, the wound was managed by a team of surgeons, and it therefore could not be said to be poor management or poor technique.
29. PW3 testified that the minor was operated on by a surgeon who performed surgical debridement, which involves the removal of dead, septic tissue from a wound, and stated that their responsibility was to go around administering medicine to the patients. He stated that, according to the Discharge Summary, the patient spent a total of 14 days in the facility, that he attended to him in the ward, and that he discharged him on 26th December 2022. He produced the Discharge Summary (P.Exh 2a).
30. PW3 further stated that they conducted a full blood count to assess the blood level and check for infection, and noted that the haemoglobin was normal. They also conducted a blood group test to assess kidney function in case he bled heavily and needed a transfusion, or to assist kidney function in case of a reaction to the anaesthesia. They found that the kidneys were normal, and he produced the 2 reports: Hematology Reports P.Exh. 2(b) and Laboratory Reports P.Exh 2(c).
31. PW3 referred to the Discharge Summary from KNH dated 13th February 2023 and stated that two operations had been performed, comprising a major surgical debridement and a partial-thickness skin graft. He explained that the debridement involved removing dead and septic tissue, while skin grafting involved removing skin from another region, mostly the thigh, and applying it to that region.
32. On cross-examination, PW3 stated that the procedure performed at their facility was a major surgical debridement and that he was the discharging doctor. He confirmed that he discharged the minor in a stable condition and that they had completely removed the dead and septic tissues. However, he did not know why the procedure was performed at KNH or repeated, as per the Discharge Summary of K.N.H. He stated that their diagnosis was post-circumcision gangrene and a septic penile wound, indicating that the wound was infected.
33. PW3 explained that there are 2 types of gangrene: dry and wet, and that in this case the patient had dry gangrene. He also said that the infection does not make gangrene wet, and confirmed that the cause of the wound infection would have been poor wound management or improper circumcision. He further stated that he did not admit the patient, but only managed him during his stay on the premises, and that he was not sure of the kind of management being provided to the patient from 2nd December 2022. He also could not say whether there was poor handling, and stated that after circumcision the wound needed to be dressed, though he did not know whether this was done.
34. PW3 testified that he was not sure whether there had been poor handling by the parent and stated that if he saw a problem with a wound, he would take immediate action. He also said that he had instructed them to perform alternate cleaning and wound dressing at the nearest clinic, but that he did not see the patient after discharge. He denied referring them to KNH and stated that he advised them on how to clean the wound until it healed by itself. He said that these measures would have been sufficient then and explained that a septic wound means a dirty or infected wound, and that the cause would be failure to take antibiotics or poor dressing of the wound.
35. PW3 stated that they performed removal of the septic wound, i.e. debridement, and said that it was proper to go back 2 or 3 days after the circumcision to check on the wound, then on alternate days depending on how the wound heals. He gave evidence that he did not know where the patient went after the 2 or 3 days and reiterated that the procedure required going back for dressing. He stated that proof of not going back was not necessarily poor management, but he also did not know what happened, except that he confirmed that the patient came to them with a dirty, infected wound which had gangrene. He was unable to tell whether it was negligence by the circumciser or the patient.
36. On re-examination, PW3 stated that skin grafting was performed because the wound required the doctor to harvest skin and apply it over the wound, but he did not see the patient after the patient was discharged. He stated that skin grafting is performed to cover the wound.
THE DEFENCE CASE
37. The defence adduced the testimony of Doctor David Wanikina Mauka (DW1), who stated that he worked at Webuye County Hospital as Medical Superintendent and Facility and Emergency Consultant. He said he was deployed to Webuye on 16 November 2024 and, prior to that, had worked at Bungoma Referral Hospital in the same capacity. He also told the Court that he graduated with a Bachelor of Medicine and Surgery from Moi University in 2009, completed his internship at Webuye County Hospital, and later worked in various hospitals as a doctor. He then returned for further studies to pursue a Master’s Degree in Faculty and Emergency Medicine and graduated in 2019. He had worked as a doctor for close to 16 years, with Registration Number A6828, and was in good standing.
38. DW1 adopted his statement dated 29th April 2024 as his evidence-in-chief and produced the Certificate of Registration of the 1st Defendant, Kushu Wilson Ambaisi (D.Exh 1), and the Operating Theatre Observation Chart (D.Exh 2). He stated that Kushu was a qualified, registered Clinical Officer who worked at the Bungoma County Referral Hospital and was the surgeon who performed the surgery in this case. He further testified that clinical officers undertook a course in clinical medicine and surgery and were licensed to practise surgery, including circumcision.
39. DW1 testified that he also had the clinical notes, in which he stated that the patient came for an elective procedure, a medical circumcision, which the majority of males often undergo. He stated that, from the theatre notes, the procedures carried out, the date and time were all indicated. He stated that the patient was examined and found to be fit for surgery. His vital signs were suitable for surgery, so he was draped and all safe processes were followed, including cleaning the surgical site and dropping sterile drops.
40. DW1 further testified that a local anaesthetic (lignocaine) was used and administered. During the surgery, a shield and a clamp were used, and then the foreskin was excised and the skin was stretched back. The dressing was then applied, and the patient was given medication and advised to return after 3 days.
41. It was his evidence that the patient went back for review and it was found that when the wound was exposed, it was healing well with minimal swelling at the area of circumcision. DW1 stated that the patient was again cleaned and they were advised not to dress the wound but to continue cleaning it, for the patient to continue with the antibiotics and to return if there was an issue. He stated that the patient did not return for treatment.
42. According to DW1, there were no verbal or written complaints from the patient after the treatment. Regarding the treatment notes from Bungoma West Hospital, he stated that the patient was suffering from post-circumcision gangrene and a septic penile wound. DW1 testified that sepsis is an infection that can cause gangrene, and it is possible that the gangrene was due to an infection. He explained that gangrene means the tissues are dead, so the dead tissues had to be removed and the area cleaned, with antibiotics administered to fight off the infection. He stated that if this was not done, the gangrene would still progress.
43. It was DW1’s evidence that one cannot conclude that the person who performed the surgery was negligent, because the procedure was successful, the patient went home, then returned for review, was well on re-examination, and was therefore released to go home, where he later developed an infection. He reiterated that the patient was treated and that all processes were followed. He further stated that there was also a duty on the part of the patient to practise self-care by cleaning the wound and taking the medication given, and that failure to do so would lead to complications. He stated that the complications arose after the surgery and that this constituted a secondary complication, as opposed to a primary one that would amount to negligence. It was his evidence that the patient was advised on how to avoid a secondary complication and that, according to the notes he had, the anaesthesia used by the clinician did not contain adrenaline.
44. In cross-examination, DW1 stated that he was a Family and Emergency Physician and confirmed that he was the medical superintendent at the 2nd Defendant’s facility. He told the Court that his role was both administrative and clinical, that is, he was the link between the hospital and the community, and that he ensured patients’ safety and that day-to-day hospital activities ran smoothly. DW1 stated that he worked at the hospital from 19th April 2019 to 15th July 2024, but he was neither the surgeon who performed the surgery nor present in the theatre when it was done. He stated that the surgeon who performed the surgery was a qualified surgeon.
45. He testified that the clinician was registered on 12th August 2021, as shown in the Registration Certificate produced as D.Exh 1, but that his contract with the hospital had since lapsed. He confirmed that Kushu performed the surgery within a year of his registration, and that all healthcare workers undertook a mandatory one-year internship during which they were mentored. He further confirmed that Kushu also underwent the same, as evidenced by his Registration Certificate, which was issued by the Clinical Officers Council.
46. He also said that by the time the licence was issued, the clinician was in good standing and confirmed that he had not been terminated, but that his contract had merely lapsed. He confirmed that all the records of their officers were kept and that the documents before the Court were produced on behalf of Bungoma Referral Hospital, which did not require the clinician’s consent.
47. DW1 stated
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IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL SUIT NO. E005 OF 2023
MULIRO ELIJAH WAFULA (suing on OWN BEHALF and as the father to MESHACK MULIRO MILIMO – a minor) . 1 ST PLAINTIFF
-VERSUS-
KUSHU AMBAISI …….…………………………..…. 1 ST DEFENDANT
BUNGOMA COUNTY REFERRAL HOSPITAL …. 2 ND DEFENDANT
COUNTY EXECUTIVE FOR HEALTH-COUNTY GOVERNMENT OF BUNGOMA ……………………………………….. 3 RD DEFENDANT
COUNTY GOVERNMENT OF BUNGOMA ……… 4 TH DEFENDANT
JUDGMENT
1. The Plaintiff instituted the present suit vide a Plaint dated 23 rd November 2023 against the Defendants jointly and severally, seeking the following reliefs: -
(1) General Damages for injuries suffered and sustained by the minor Plaintiff due to surgical negligence at the time of circumcision by the 1 st Defendant and thereafter.
(2) Punitive and Aggravated Damages due to the demonstrated conduct of recklessness and high-handedness of the Defendants during the circumcision and thereafter.
(3) A Declaration that the Plaintiff’s constitutional rights under Article 43 of the Constitution were violated by the Defendants and liable to pay exemplary and General Damages.
(4) General Damages for inconvenience, psychological anguish and emotional stress undergone by the Plaintiff while taking care of the minor Plaintiff and seeking financial support.
(5) Special Damages of Kshs. 4,000/= and future treatment costs to be ascertained at the hearing hereof.
(6) Costs of this suit and interest at court rates.
(7) Any other relief that this Honourable Court may deem fit to so grant.
2. The Plaintiff’s case is that on 28th November 2022, he took his healthy son, Meshack Muliro Milimo, to the 2nd Defendant herein for a surgical operation, surrendering him into the 2nd Defendant’s care, whom he believed to have the relevant facilities, expertise, knowledge and experience to undertake the circumcision. He averred that the minor was duly admitted and circumcised by the 1st Defendant at the 2nd Defendant's health facilities, where dressing and subsequent follow-ups were carried out, and that he was later advised to dress the patient at home after the patient’s condition was deemed stable.
3. The Plaintiff avers that the patient/minor's condition deteriorated when, during a home dressing, he observed that there was no healing and, instead, suspected skin decomposition. He states that his request for follow-up with the 2nd Defendant for a further check-up and/or a medical report was declined, forcing him to take the patient/minor to Bungoma West Hospital on 13th December 2022, where the patient/minor was immediately admitted and discharged on 26th December 2022 after the surgery was successfully redone.
4. It is the Plaintiff’s further case that after the surgery, the prognosis indicated negligence by the doctor/clinical officer involved at the time of circumcision, through surgical error, mismanagement, and failure to provide the patient with a medical report despite several requests by the Plaintiff. He avers that the patient/minor's painful and distressing experience was widely publicised on national television, especially on Citizen TV, which drew inter alia more attention to the crisis of institutional negligence in healthcare in Kenya, including inadequate training and lack of supervision, and which widely influenced unethical practices that caused suffering among innocent Kenyans seeking medical attention, including the minor.
5. The Plaintiff contends that despite the above publications and demand, the Defendants have never bothered to reach out to them to apologise or compensate them. Further, due to their negligence, the patient, while undergoing routine treatment, was referred for further specialised medical attention at Oasis Health Care Group, Kakamega County. After several medical check-ups in January 2023, the patient was recommended for further corrective surgery and skin grafting in Pennsylvania, USA. However, due to a lack of funds for the corrective surgery, the patient consulted Kenyatta National Referral Hospital (KNH), where it was confirmed that the procedure could be performed.
6. It is his case that on 10th February 2023, the patient was admitted to the Kenyatta National Hospital Prime Care Centre under Dr. Alex Okello (Reconstructive Surgery) after being diagnosed with Post-Traumatic Penile Wounds. He underwent major debridement and partial-thickness skin grafting on 11th February 2023. The reconstruction was successful, and the patient was discharged on 13th February 2023.
7. It is also averred that, as a result of the above, the Plaintiff suffered psychological anguish, mental and financial torture, and, being a TSC teacher, had to seek a leave of absence from school to care for the minor during his admission to both hospitals and at home, while also sourcing funds for the minor's treatment and expenses. The minor also underwent severe mental and emotional stress and physical pain from the date of circumcision and the post-circumcision trauma, which has affected his self-esteem and performance in class. The particulars of negligence were pleaded at paragraph 24 of the Plaint.
8. The Defendants entered an appearance and filed a joint Statement of Defence dated 17th April 2024, in which they denied the contents of the Plaint and put the Plaintiff to strict proof. They averred that the 1st Defendant is a fully trained, certified and experienced practitioner in his area of expertise and has successfully performed numerous surgical procedures whilst in the employ of the 4th Defendant. They denied any mismanagement, high-handedness or recklessness by the 1st Defendant whilst attending to the minor patient, and contend in their defence that the Plaintiff is not entitled to the reliefs sought and that they never infringed any of the Plaintiff’s or the minor’s constitutional rights.
9. The Plaintiff filed a Reply to the Defence dated 31st May 2024, in which he reiterated the contents of the Plaint. Subsequently, the matter was set down for hearing.
THE PLAINTIFF’S CASE
10. The Plaintiff called three (3) witnesses. PW1, Doctor Mulianga Ekesa, a consultant surgeon in Bungoma town, testified that he examined one Meshack Muliro Milimo (the minor in this case) on 17th November 2023. He further testified that the minor was a 12-year-old pupil whose history included undergoing male circumcision under local anesthesia on 28th November 2022 at Bungoma County Referral Hospital. He also stated that there was minimal post-operative pain and swelling, but after seven (7) days the parent noticed blisters on the skin of the penile shaft. After three (3) weeks from the date of circumcision, the father noticed a circumferential demarcation on the penile skin at the base of the penis, accompanied by pain. He also noticed that the area, i.e., the circumcision line and the base of the penis, had become black and hard as hide. The minor was then treated for these observations at Bungoma West Hospital in Bungoma town, where the hardened part was removed and a skin graft was performed at Kenyatta National Hospital (KNH).
11. PW1 testified that at the time of this examination, the minor’s father said the boy had experienced severe pain and that a substantial sum of money had been spent. On physical examination, PW1 noted a scar on the thigh measuring 10 by 7 centimeters, which was the donor site from which skin was taken to graft the penile wound. On general examination, the minor had grafted skin on the penile shaft between the circumcised shaft and the base of the shaft. He formed the opinion and prognosis that the minor had suffered gangrene of the penile shaft, i.e., death of a part of the body with the rest remaining alive. He also suffered pain and psychological trauma. The pain was due to dry gangrene on the penis, as opposed to wet gangrene. He explained that dry gangrene is usually due to blockage of blood flow to the vessels beyond the demarcated area, while wet gangrene is usually due to infection.
12. It was PW1’s further testimony that the occlusion was caused either physiologically or mechanically. The physiological aspect could have been due to the use of a local anesthetic agent containing adrenaline, which constricts the blood vessels so that no blood reaches the distal part. On the other hand, he testified that if it is mechanical, it entails tying a rubber band or something similar to prevent blood from flowing to the part being operated on. In this scenario, if the tourniquet is left for more than 2 hours, the area will become gangrenous. From the history he was given, he concluded that the gangrene was caused by the physiological effect, as he was neither informed nor had it been indicated that a tourniquet had been used. He stated that if the tourniquet was used, it is possible that the boy remained with it until the 3rd day, when they went back for review. It was his evidence that the minor had nonetheless made a fairly good recovery from the gangrene and skin graft. PW1 produced the Medical report dated 17th November 2023 (P.Exh18).
13. PW1 further testified that he charged the patient Kshs. 4000/= for consultation and issued a receipt, which he produced in Court (P.Exh19). He stated that he had gained experience in surgery from 1988 and that it was not uncommon to encounter complications of circumcision in a hospital setting. From the history, his view was that the negligence was due to the use of local anesthesia and minimal hygiene. He stated that the wound is usually dressed and that the worst scenario is an infection at the incision site, not the gangrene he got. He stated that he had worked and trained in a referral hospital and that he left public service from Bungoma Referral Hospital. He explained that a young clinician is to work under the supervision of a consultant surgeon and a much more senior medical officer in each particular case.
14. On cross-examination, PW1 testified that he qualified as a specialist surgeon in 1994 after training in Australia at Landas House and in Israel at Galilee College. He explained that local anaesthesia numbs a specific area of the body, unlike a general anaesthetic, which renders a patient unconscious and prevents pain throughout the body. He added that the choice of local anaesthesia depends on the procedure to be performed and a number of other factors, e.g. the patient’s age or fear. In the present case, the clinician was not wrong to use local anaesthesia, especially if it did not contain adrenaline. If the drug contained adrenaline, that would constitute negligence arising from professional misconduct. If a tourniquet was used and not removed, that would also be negligence. He said that the patient’s father gave him a history in the boy’s presence, with the minor chipping in, but he could not recall what each said.
15. He stated that he and the father conducted a physical examination of the boy and also provided his previous medical examination reports, along with some photographs. He denied referring the Court to other medical evidence when he tendered his evidence-in-chief, and stated that the gangrene developed after 7 days, when he noticed blisters on the penile shaft, at which point it had manifested. He stated that the hard skin was noticed 3 weeks later, and that, according to the history, they had sought medical care during those three (3) weeks.
16. PW1 further testified that the minor was taken to Bungoma West Hospital and that gangrene had set in when they noticed the blisters. He confirmed that the gangrene was treated because it is a treatable complication, and that antibiotics were not used because they are used to treat a secondary infection. He stated that by the time the blisters were setting in, there was nothing they could have done, as blood in that area had already accumulated. He further stated that the treatment could have been to reconstruct the blood vessels between the gangrenous portion and the normal skin below the gangrenous portion, which cannot be done here in Kenya due to a lack of technology. So the treatment in this case was basically just dressing.
17. PW1 also testified that the minor had made a fairly good physical recovery, but he felt strongly that the pain was psychological, based on the information he was given at the time of examination. He also concluded from the history that the local anaesthetic administered may have contained adrenaline, but he could not confirm this unless he was the one who administered the drug. He stated that even if a mistake was made, it must be disclosed, and that he was aware there were two boys presented for circumcision. He stated that he was merely presenting a medical-legal report and that he did not see the other boy. He said that after the university has released a doctor, they practise under a qualified senior surgeon before being recognised as a specialist in that field, and that in this case he did not know the qualifications of the clinical officer, but stated that they are trained below doctors and could take charge since circumcision is a minor surgery.
18. PW2, Muliro Elijah Wafula, the father of Meshack Muliro Milimo and the plaintiff herein, testified that he was a teacher and wished to rely on his statement dated 23rd November 2023, together with the bundle of documents filed. He testified that he opted to take his son to Bungoma Referral Hospital because it had officers who handle life, and he had confidence that they would give him excellent service. He stated that the excellent service was never given because after his son was discharged and taken home for recovery, he changed his walking style due to the pain and developed a smell.
19. His evidence was that he had to seek a 2nd opinion from another facility and that he went to the hospital but was never assisted. He stated that there were 2 boys, and the other was healing well. He said that he took the boys to Bungoma West hospital, where the person attending to them told him, after looking at the organ, that it was dead, while another doctor was called and told him it was gangrenous. PW1 produced the following documents as exhibits: -
(a) Outpatient Card, Bungoma County Referral Hospital – (P.Exh 1)
(b) Photographs after circumcision (P.Exh 4)
(c) Royal Vision Academy Letter (P.Exh 5)
(d) Filtered M-Pesa Statement (P.Exh 13)
(e) Plaintiff’s National Identity Card and Appointment Card/Letter (P.Exh 14)
(f) The Minor’s Birth Certificate (P.Exh. 15)
(g) Complaint Letter to the Kenya Medical Practitioners and Dentists Council (P.Exh 16).
20. In cross-examination, he stated that he took two boys, Ancement Mukasa and Meshack Muliro, for circumcision on 28th November 2022, and that the procedure was performed on each boy by a different surgeon, though he did not enter the operating room. He confirmed that the two were discharged the same day and that each was in fair physical condition, with no pain, bleeding or swelling. He stated that the two boys were staying together in one house and one room, and that his brother was dressing them and taking care of them, but that his brother was not a witness in this case. He confirmed that he did not mention his brother in the statement.
21. PW2 stated that they went back for a check-up a few days later on 30 November 2022, and the doctor told them they were okay and that they would continue with aftercare at home. He stated that, at the time, there appeared to be no complications, as the boys had not complained of pain, and, in fact, the other boy was walking normally after 2 days.
22. It was his evidence that when they looked at the victim’s wound, it looked terrible, but they proceeded with the normal dressing. Since it was drying, they thought he was recovering. However, PW2 said that he noticed the minor’s walking style was funny, although the minor had not complained of pain. PW2 testified that the minor told him that perhaps the bandage was tightly tied, but PW2 did not seek advice from a physician even after noting this change in walking style.
23. PW2 continued to testify on cross-examination that he wasn’t given the physician’s number to consult about the matter after the surgery, and that he could not confirm whether his brother was entirely in charge of the boys. He further said that his brother called him on the 13th and told him that the boy was not behaving normally, so he went and checked immediately and sought a medical opinion on the same date. He confirmed that he noticed a change in the boy’s walking style from 2nd December 2022 and said that he went to seek a second opinion from Bungoma West Hospital in Kanduyi.
24. PW2 testified that at Bungoma West Hospital, he was told the wound was gangrenous, so his son was admitted. The hospital called Doctor Olunga from Kakamega, who examined the boy and immediately admitted him for corrective surgery. He confirmed to the Court that he was informed of the risks and had to sign a consent form for the surgery. He told the Court that he had also signed a consent form at Bungoma Referral Hospital and that they successfully underwent the second corrective procedure, during which the dead skin and the inner parts that were rotting were removed. He stated that the minor stayed at the hospital for over 2 weeks. When he was discharged, he had improved, but they were told he would not form new skin.
25. PW2 stated that he was the one caring for the boy while continuing to work as a teacher. He denied that his salary had been stopped and stated that the insurance covered the procedure at K.N.H. He further stated that he had incurred significant expenses, as some payments were made in cash. He also told the Court that his brother is a community health practitioner, which is why he was with the boys, as that is his training.
26. On re-examination, PW2 stated that the County Staff, who are his friends, gave him the number of the doctor in charge of surgeons. He inquired through the demand letter about what had happened, and the doctor said he would provide a report but did not. PW2 stated that the doctor said the boy could have reacted to the medicine he was given, so PW2 decided to take him to Bungoma West. He stated that he would call and would be told that the wound was drying. It was his evidence that the boy missed classes in January, that he kept checking on him, and that he was traumatized when he was told his penis was dead. He reaffirmed that it was the doctor who was negligent and that is why he sued the County Government and the Referral Hospital. He further stated that the incident was reported in the news through the media, but still no one from the County Hospital came to apologise to them.
27. PW3, Doctor Kisika Mwambu, testified that he is a medical officer registered under Registration No. A6992 with the Kenya Medical Practitioners and Dentist Council and that he has been at Bungoma West Hospital for the past 7 years. He stated that on 13th December 2022, he received a patient, Meshack Muliro, who had been circumcised at Bungoma County Referral Hospital and had developed complications in the circumcision wound, with dead tissue on the ground, also known as gangrene.
28. He testified that the gangrene was present on part of the penile shaft, and that they therefore diagnosed the gangrene in the circumcision wound as requiring surgical intervention. He stated that this was a rare occurrence, as it was not normal for a circumcision wound to develop necrotic tissue. He further stated that it could have been caused by poor management of the wound after circumcision or by poor technique during the circumcision. In this case, the wound was managed by a team of surgeons, and it therefore could not be said to be poor management or poor technique.
29. PW3 testified that the minor was operated on by a surgeon who performed surgical debridement, which involves the removal of dead, septic tissue from a wound, and stated that their responsibility was to go around administering medicine to the patients. He stated that, according to the Discharge Summary, the patient spent a total of 14 days in the facility, that he attended to him in the ward, and that he discharged him on 26th December 2022. He produced the Discharge Summary (P.Exh 2a).
30. PW3 further stated that they conducted a full blood count to assess the blood level and check for infection, and noted that the haemoglobin was normal. They also conducted a blood group test to assess kidney function in case he bled heavily and needed a transfusion, or to assist kidney function in case of a reaction to the anaesthesia. They found that the kidneys were normal, and he produced the 2 reports: Hematology Reports P.Exh. 2(b) and Laboratory Reports P.Exh 2(c).
31. PW3 referred to the Discharge Summary from KNH dated 13th February 2023 and stated that two operations had been performed, comprising a major surgical debridement and a partial-thickness skin graft. He explained that the debridement involved removing dead and septic tissue, while skin grafting involved removing skin from another region, mostly the thigh, and applying it to that region.
32. On cross-examination, PW3 stated that the procedure performed at their facility was a major surgical debridement and that he was the discharging doctor. He confirmed that he discharged the minor in a stable condition and that they had completely removed the dead and septic tissues. However, he did not know why the procedure was performed at KNH or repeated, as per the Discharge Summary of K.N.H. He stated that their diagnosis was post-circumcision gangrene and a septic penile wound, indicating that the wound was infected.
33. PW3 explained that there are 2 types of gangrene: dry and wet, and that in this case the patient had dry gangrene. He also said that the infection does not make gangrene wet, and confirmed that the cause of the wound infection would have been poor wound management or improper circumcision. He further stated that he did not admit the patient, but only managed him during his stay on the premises, and that he was not sure of the kind of management being provided to the patient from 2nd December 2022. He also could not say whether there was poor handling, and stated that after circumcision the wound needed to be dressed, though he did not know whether this was done.
34. PW3 testified that he was not sure whether there had been poor handling by the parent and stated that if he saw a problem with a wound, he would take immediate action. He also said that he had instructed them to perform alternate cleaning and wound dressing at the nearest clinic, but that he did not see the patient after discharge. He denied referring them to KNH and stated that he advised them on how to clean the wound until it healed by itself. He said that these measures would have been sufficient then and explained that a septic wound means a dirty or infected wound, and that the cause would be failure to take antibiotics or poor dressing of the wound.
35. PW3 stated that they performed removal of the septic wound, i.e. debridement, and said that it was proper to go back 2 or 3 days after the circumcision to check on the wound, then on alternate days depending on how the wound heals. He gave evidence that he did not know where the patient went after the 2 or 3 days and reiterated that the procedure required going back for dressing. He stated that proof of not going back was not necessarily poor management, but he also did not know what happened, except that he confirmed that the patient came to them with a dirty, infected wound which had gangrene. He was unable to tell whether it was negligence by the circumciser or the patient.
36. On re-examination, PW3 stated that skin grafting was performed because the wound required the doctor to harvest skin and apply it over the wound, but he did not see the patient after the patient was discharged. He stated that skin grafting is performed to cover the wound.
THE DEFENCE CASE
37. The defence adduced the testimony of Doctor David Wanikina Mauka (DW1), who stated that he worked at Webuye County Hospital as Medical Superintendent and Facility and Emergency Consultant. He said he was deployed to Webuye on 16 November 2024 and, prior to that, had worked at Bungoma Referral Hospital in the same capacity. He also told the Court that he graduated with a Bachelor of Medicine and Surgery from Moi University in 2009, completed his internship at Webuye County Hospital, and later worked in various hospitals as a doctor. He then returned for further studies to pursue a Master’s Degree in Faculty and Emergency Medicine and graduated in 2019. He had worked as a doctor for close to 16 years, with Registration Number A6828, and was in good standing.
38. DW1 adopted his statement dated 29th April 2024 as his evidence-in-chief and produced the Certificate of Registration of the 1st Defendant, Kushu Wilson Ambaisi (D.Exh 1), and the Operating Theatre Observation Chart (D.Exh 2). He stated that Kushu was a qualified, registered Clinical Officer who worked at the Bungoma County Referral Hospital and was the surgeon who performed the surgery in this case. He further testified that clinical officers undertook a course in clinical medicine and surgery and were licensed to practise surgery, including circumcision.
39. DW1 testified that he also had the clinical notes, in which he stated that the patient came for an elective procedure, a medical circumcision, which the majority of males often undergo. He stated that, from the theatre notes, the procedures carried out, the date and time were all indicated. He stated that the patient was examined and found to be fit for surgery. His vital signs were suitable for surgery, so he was draped and all safe processes were followed, including cleaning the surgical site and dropping sterile drops.
40. DW1 further testified that a local anaesthetic (lignocaine) was used and administered. During the surgery, a shield and a clamp were used, and then the foreskin was excised and the skin was stretched back. The dressing was then applied, and the patient was given medication and advised to return after 3 days.
41. It was his evidence that the patient went back for review and it was found that when the wound was exposed, it was healing well with minimal swelling at the area of circumcision. DW1 stated that the patient was again cleaned and they were advised not to dress the wound but to continue cleaning it, for the patient to continue with the antibiotics and to return if there was an issue. He stated that the patient did not return for treatment.
42. According to DW1, there were no verbal or written complaints from the patient after the treatment. Regarding the treatment notes from Bungoma West Hospital, he stated that the patient was suffering from post-circumcision gangrene and a septic penile wound. DW1 testified that sepsis is an infection that can cause gangrene, and it is possible that the gangrene was due to an infection. He explained that gangrene means the tissues are dead, so the dead tissues had to be removed and the area cleaned, with antibiotics administered to fight off the infection. He stated that if this was not done, the gangrene would still progress.
43. It was DW1’s evidence that one cannot conclude that the person who performed the surgery was negligent, because the procedure was successful, the patient went home, then returned for review, was well on re-examination, and was therefore released to go home, where he later developed an infection. He reiterated that the patient was treated and that all processes were followed. He further stated that there was also a duty on the part of the patient to practise self-care by cleaning the wound and taking the medication given, and that failure to do so would lead to complications. He stated that the complications arose after the surgery and that this constituted a secondary complication, as opposed to a primary one that would amount to negligence. It was his evidence that the patient was advised on how to avoid a secondary complication and that, according to the notes he had, the anaesthesia used by the clinician did not contain adrenaline.
44. In cross-examination, DW1 stated that he was a Family and Emergency Physician and confirmed that he was the medical superintendent at the 2nd Defendant’s facility. He told the Court that his role was both administrative and clinical, that is, he was the link between the hospital and the community, and that he ensured patients’ safety and that day-to-day hospital activities ran smoothly. DW1 stated that he worked at the hospital from 19th April 2019 to 15th July 2024, but he was neither the surgeon who performed the surgery nor present in the theatre when it was done. He stated that the surgeon who performed the surgery was a qualified surgeon.
45. He testified that the clinician was registered on 12th August 2021, as shown in the Registration Certificate produced as D.Exh 1, but that his contract with the hospital had since lapsed. He confirmed that Kushu performed the surgery within a year of his registration, and that all healthcare workers undertook a mandatory one-year internship during which they were mentored. He further confirmed that Kushu also underwent the same, as evidenced by his Registration Certificate, which was issued by the Clinical Officers Council.
46. He also said that by the time the licence was issued, the clinician was in good standing and confirmed that he had not been terminated, but that his contract had merely lapsed. He confirmed that all the records of their officers were kept and that the documents before the Court were produced on behalf of Bungoma Referral Hospital, which did not require the clinician’s consent.
47. DW1 stated
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